AUGUST 14, 2013

New judicial selection law poses threat to Arizona’s fair courts

Justice at Stake files Friend of Court Brief in Dobson v. State of Arizona

WASHINGTON, D.C., August 8 –A newly enacted Arizona law threatens to politicize the selection of top state judges and jeopardizes public trust in impartial courts, Justice at Stake warned in a legal brief urging the Arizona Supreme Court to strike down the law.

In an amicus brief filed yesterday in Dobson v. State of Arizona, Justice at Stake and a JAS partner organization, the Brennan Center for Justice, said the new law passed by the legislature this year gives the governor more sway over selecting judges and takes power from away from a nonpartisan, 15-member vetting commission.

In enacting the law, “the legislature brushed aside the will of Arizona’s citizens in a brazen, unlawful attempt to inject the political dynamics of the legislature into the apolitical process of judicial selection,” the brief stated. The challenged law violates “separation of powers” and risks undermining the public’s confidence in the courts, the brief added.

“To allow the changes included in [the law] to stand would be to shift selection based on merit toward selection based on partisanship, and would shift the balance of power away from the commission and toward the governor,” the brief said.

Liz Seaton, acting JAS executive director, noted the legislation was passed despite the defeat in 2012 of a similar proposal by 72 percent of Arizona voters in a constitutional referendum called Proposition 115.

Arizona chooses appellate judges through a merit selection process, adopted after a popular vote in a 1974 constitutional referendum. The reform was intended to ensure that judges seated on the bench get a thorough vetting and are not beholden to campaign donors or politicians. Under the constitutional amendment, the judicial nominating commission is to recommend as few as three candidates to the governor, who then appoints a judge from the list.

The legislature voted this year to raise the constitutional floor and require the vetting commission to recommend at least five candidates to the governor. The new law also provides that the commission, on a vote by two-thirds of its members, may submit fewer than five names.

Members of Arizona’s judicial nominating commission brought the legal challenge. They contended the legislature’s writing changes Arizona’s constitution, which “may be amended only by a vote of the People.”

The petitioners in the case are represented by a legal team that includes former Arizona Supreme Court Justice Ruth McGregor and Phoenix attorney Mark Harrison, a partner from the law firm of Osborn Maledon PA. Justice McGregor belongs to the Justice at Stake Board of Directors and Harrison is the JAS Board’s chairman but both are counsel in the case in their individual capacities, not as JAS board members. Neither participated in the formulation or approval of the amicus brief. The full amicus brief is available here.